On Wednesday, the first People of the Kalahari (FPK) were in court seeking an order that would compel the government to instruct surveyors and constructors to find a suitable spot for a new borehole within the Central Kalahari Game Reserve (CKGR).
They have said that if government won’t re-open the old borehole within the CKGR, then they should be allowed to sink a new borehole for themselves.
The Basarwa said that they do not need the permission from government to sink a borehole in the CKGR but they do need its permission to allow surveyors and constructors to enter the park and find a spot perfect for a new borehole.
The state advocate, Paul Berger, said that the Basarwa have to go through the normal channels of procedure whereby they have to apply for a water license, which could either be accepted or rejected.
However, the FPK were reluctant to believe that government would grant them this request as it has in the past ignored their requests for a water license.
They said that they have been waiting for government‘s response to re-open the borehole for well over 3 years, adding that government refused to give them access to the old borehole in order to force them to back down from exercising their rights of staying within the CKGR.
The lawyer for Basarwa, Gordon Bennett, said that the FPK’s argument that they didn’t need government‘s permission was based on Section 6 Subsection 3.
However, both Berger and Bennett conceded with High Court judge, Justice Singh Walia, when he said that he was unnerved by the absurdity of Section 6; Subsection 1 of the constitution, which could be interpreted to mean that any Motswana who owns or occupies land has the right to sink a borehole whenever they want without permission of any sort.
For well over 8 years, the Basarwa have reported that government had denied them access to a borehole that had been their main source of water supply since 1986.
The world has been shown pictures of old men and women in their mid eighties inside the Kalahari who had no means of travelling the said 480 kilometres to obtain water.
Survival International, an organisation that has been at the forefront in fighting for the rights of the FPK, had required Bennett’s services to represent the Basarwa.
Belger said that government’s decision to cap the borehole was both legitimate and lawful and that re-opening the borehole would only interfere with the government’s policies. He said in the 2002 case of Sesana against the state, the court had relieved government of providing basic and essential services to the FPK residing inside the reserve. He said that since the borehole formed part of the essential services, government was not obliged to provide it to the FPK.
“The applicants have chosen to live a life of hardship. They said they wanted to be left alone to live in their traditional manner, the borehole is not traditional so by capping the borehole government didn’t in any way affect their tradition,” said the state advocate.
The lawyer also said that the FPK are inflicting such conduct on themselves as government had tried to help them by setting up a legitimate service provision for them outside the park.
“We are not concerned with the policy of the government, the court is not being asked to take any part in that. However, it’s asked to intervene for the human souls inside the park who are suffering because of lack of access to water. We know that government’s policy is to deter people from living inside the CKGR,” said the applicants’ lawyer.
Judgement has been reserved.